| Penaloza v Chavez |
| 2008 NY Slip Op 01515 [48 AD3d 654] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Elvira E. Penaloza, Respondent, v Ramon G. Chavez et al.,Appellants, et al., Defendants. |
—[*1] Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Ramon G. Chavez andJose F. Rosa appeal from an order of the Supreme Court, Queens County (Kelly, J.), dated May22, 2007, which denied their motion for summary judgment dismissing the complaint insofar asasserted against them on the ground that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsRamon G. Chavez and Jose F. Rosa for summary judgment dismissing the complaint insofar asasserted against them is granted.
The defendants Ramon G. Chavez and Jose F. Rosa (hereinafter the appellants) made a primafacie showing that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Kearse v New York City Tr. Auth.,16 AD3d 45, 49-50 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of theplaintiff's treating neurologist Dr. David Zelefsky noted significant range of motion limitations inthe plaintiff's cervical and lumbar spine based on recent and contemporaneous range of motiontesting. Despite the fact that he concluded that the cervical and lumbar spine injuries andlimitations were the result of the subject accident and were permanent, he failed to adequatelyaddress the fact that the plaintiff had two prior accidents in which she injured her back and neck.While he did make [*2]a notation in his affirmation that she wasinvolved in the two prior accidents, he merely took the plaintiff's word for the fact that theplaintiff recovered from any injuries sustained therein. Dr. Zelefsky never reviewed any of theplaintiff's prior medical records related to those accidents (see Vidor v Davila, 37 AD3d 826 [2007]). Due to his failure toadequately address these two prior accidents, his conclusions that the injuries and limitationsnoted in the plaintiff's cervical and lumbar spines were the result of the subject accident wereclearly rendered speculative (see Vidor vDavila, 37 AD3d 826 [2007]; Moore v Sarwar, 29 AD3d 752 [2006]; Bennett v Genas, 27 AD3d 601[2006]; Allyn v Hanley, 2 AD3d470 [2003]).
The magnetic resonance imaging reports of the cervical, thoracic, and lumbar regions of theplaintiff's spine revealed merely that, as of mid 2006, she showed evidence of bulging discs inthe lumbar and thoracic spine, as well as a herniated disc in the cervical spine. The mereexistence of a herniated or bulging disc is not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the disc injuryand its duration (see Siegel v Sumaliyev,46 AD3d 666 [2007]; Mejia vDeRose, 35 AD3d 407, 407-408 [2006]; Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]; Cerisier v Thibiu, 29 AD3d 507,508 [2006]; Bravo v Rehman, 28AD3d 694, 695 [2006]; Kearse vNew York City Tr. Auth., 16 AD3d 45, 49-50 [2005]; Diaz v Turner, 306 AD2d241, 242 [2003]). Moreover, none of the plaintiff's treating radiologists gave any opinion in theirreports as to the cause of the pathology noted within those reports (see Collins v Stone, 8 AD3d 321,322 [2004]). The plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact asto whether she sustained a serious injury within the meaning of the no-fault statute (see Roman v Fast Lane Car Serv., Inc.,46 AD3d 535 [2007]; Fisher v Williams, 289 AD2d 288, 289 [2001]). Theplaintiff failed to proffer competent medical evidence that she sustained a medically-determinedinjury of a nonpermanent nature which prevented her, for 90 of the 180 days following thesubject accident, from performing her usual and customary activities (see Sainte-Aime v Ho,274 AD2d 569, 569-570 [2000]). Mastro, J.P., Fisher, Florio, Angiolillo and Dickerson, JJ.,concur.